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Sometimes the wisest legal strategy is a PR nightmare. Sometimes the best public relations move can violate the law. And sometimes a lousy legal strategy will lead to widespread public condemnation, but the Trump administration steers full speed ahead into the iceberg anyway because they’ve been inhaling the putrid exhalations of the wingnutosphere so long they can hardly tell which way is up.
This is one of those times.
After Homeland Security shock troops got caught throwing racial justice protestors in Portland, Oregon into the back of unmarked vehicles and driving them to an undisclosed location for questioning, Acting DHS Secretary Chad Wolf, best known as the architect of the child separation policy, took to the airways to defend his agency.
“Earlier this week, I called not only the mayor but the governor,” Wolf told a sympathetic Sean Hannity on Friday. “I offered DHS support to help them locally address the situation that’s going on in Portland. And their only response was, ‘Please pack up and go home.’ And that’s just not gonna happen on my watch.”
Which is big talk for a lobbyist with zero law enforcement experience and no legal background who happened to be the last guy standing after everyone else got fired and couldn’t even get confirmed to his position.
The “situation” Wolf refers to is 50 days of protests and scuffles with police, with minor property damage to federal buildings in downtown Portland. But with Trump threatening to “take over” Democratic cities to control everything from protestors to crime generally, the DHS swung into action to implement the president’s dystopian plan.
The legal justification for the crackdown appears to be a pasted together amalgam of 40 U.S.C. § 1315, which empowers federal agents to protect federal property, and a June 26 Executive Order about protecting sacred Confederate monuments. The order was largely ignored at the time, since it was larded with nutbaggery about imagined Marxists who “have sought to impose that ideology on Americans through violence and mob intimidation” and warnings about wild-eyed extremists clamoring for “many existing religious depictions of Jesus and the Holy Family [to] be purged from our places of worship.”
As constitutional lawyer Steve Vladeck points out, 40 U.S.C. § 1315 only empowers federal agents to arrest citizens for federal crimes which those agents have witnessed or have probable cause to believe have been committed. This would not extend to unleashing squads of heavily armed men to round up random protestors for detention and interrogation, as they are purported to have done with 29-year-old Mark Pettibone last week.
“It was basically a process of facing many walls and corners as they patted me down and took my picture and rummaged through my belongings,” Pettibone told Oregon Public Broadcasting. “One of them said, ‘This is a whole lot of nothing.’”
After being Mirandized and declining to answer questions without a lawyer present, Pettibone was released without charge or documentation. DHS later acknowledged that it had detained Pettibone, with Acting Homeland Security Deputy Secretary Ken Cuccinelli telling NPR that agents “believed they had identified someone who had assaulted officers or a position – a federal building there, the courthouse. Upon questioning, they determined they were – they did not have the right person, and that person was released. So – but all that questioning took place out of reach of a mob that had been gathering in one point, so that’s how that concluded.”
So a bunch of storm troopers jump out of a van and chase down a few stragglers walking home from a protest, they catch some skinny white dude dressed in black — just like everyone else! — and decide that they need to question him about some unspecified federal crime, remove him from the scene because of a “mob,” and then get to detain him without charge? Sounds legit.
On Saturday, Oregon Governor Kate Brown sued D.H.S., C.B.P., the U.S. Marshals Service, and the Federal Protective Service, seeking to enjoin them from warrantless detention of citizens exercising their First Amendment right to protest and walk down the street unmolested in the United States of America.
Portland Mayor Ted Wheeler decried the federal government’s escalation, which is making a tense situation far worse.
“My residents don’t know who a federal officer is, or a local police officer or a county deputy or a state patroller. They don’t know and they don’t care. It’s all the same to them,” he told Oregon Public Broadcasting. “On Friday night, after the federal police starting gassing people about 300 people came to my house and wanted to know why I allowed our police officers to gas people, which of course I didn’t and they didn’t. But it’s a distinction without a difference in the eyes of the public, and I believe the president and his people know that.”
And then came the moms.
On Saturday, a few dozen mothers showed up at the federal courthouse to to shield protestors from federal agents.
Last night, there were hundreds.
Would DHS really pepper spray hundreds of middle aged mothers? They would!
They also managed to beat the crap out of a navy veteran asking them to uphold their oath to the constitution in a video that wound up going viral.
And apparently, they plan to do a whole lot more of it. The Chicago Tribune reports that DHS will be sending 150 troops to Chicago this week to see if they can make a bad situation there even worse.
Spoiler Alert: They can, and they will.
Elizabeth Dye (@5DollarFeminist) lives in Baltimore where she writes about law and politics.